Court Ruling Could Effect ATV and Dirtbike Recreation

By Dan Nitzel

          A recent Nebraska Supreme Court ruling may make all recreation on public lands legally risky.   All of this came about because of a court case that arose from Fur Trade Days in Chadron in 2002, when a woman stepped in a hole on the Dawes County Courthouse lawn and broke her ankle. Several surgeries later, she sued the county. 

Dawes County argued before the courts that they are not responsible for the damages as they are covered under Nebraska’s Recreational Liability Act.  Lower courts said the state Recreation Liability Act and Supreme Court rulings dating to 1981 required her to show "willful or malicious failure to act" in order to validate a claim.

On Sept. 29, former Chief Justice of the Nebraska Supreme Court John Hendry said the state law, passed in 1965, protected private individuals who opened their property for recreation. That statute said nothing about public landowners, which lost protection under a 1969 law, he wrote.  In the ruling, the court said that governments can more easily be held liable for recreational accidents on their land. The decision reversed 25 years of previous high court rulings. And it has government leaders wondering if they can risk permitting any kind recreational activity on their land.

With this opinion issued by the Nebraska Supreme Court, initially skate board parks in North Platte, Fremont and Hastings were closed.  Now, many skate board parks in Nebraska cities are closing down.  Insurance companies have informed the city governments and other government land management agencies that the skate board parks and other recreational activities, such as bunting, are no longer covered, or that the insurance cost covering the parks has substantially increased.  In the case of the increased insurance costs, some cities decided that they cannot afford the increased insurance rates. 

Because of the ruling, other government lands have been closed as well.  The University of Nebraska has recently decided to close all of the lands they mange that were formally open to the public for hunting.   

          Why should we be concerned about this?  The Headworks OHV Park near Genoa, the Flat Rock Riders OHV Park near Sutherland and the Alliance MX track near Alliance are all owned by government agencies.  These government agencies operated these parks under the assumption that they were shielded from liability because of the Nebraska Recreational Liability Act. 

          This same act can be used to protect NOHVA.  Our insurance costs are based on the assumption that the Nebraska Recreational Liability Act would be the first road block to protect us.  In the worst case scenario, if our insurance company determines that they cannot continue our insurance policy because of the recent Supreme Court ruling, the Flat Rock Riders park and the Alliance track will close.  Additionally, our organization would no longer be protected from liability at the Headworks OHV Park. 

If we loose our insurance coverage, I can pretty well guarantee that NOHVA will separate itself from any involvement at the Headworks OHV Park.  Speaking for myself, there is no way that I would want to be exposed to a potential law suit that could take my home and life savings.  I’m sure no one on the NOHVA board of directors would be willing to assume any kind of responsibility for any ATV or dirtbike project in Nebraska without insurance.  The fate of the Headworks OHV Park if our insurance is cancelled is unknown, but I’d bet that it may eventually close. 

          There is a possibility that our insurance premium could increase either a little of a lot.  If our premiums increased a considerable amount, we would not be able to afford it.  It is not unheard of in other states to see insurance premiums for an area like Headworks to cost $20,000 to $50,000 a year.  We are now paying about $8000. 

          So what is going to be done to change the Nebraska Recreational Liability Act so that government agencies are covered?  It would be safe to assume that legislation will be introduced early next year to amend the Nebraska Recreational Liability Act to cover government land owners and cities.  For us, this would be a good time to suggest changes to the legislation where motorized recreation is specifically mentioned as an activity shielded from liability.  It may also be a good time to include one of my suggestions where a public or private land owner would be allowed to charge a reasonable fee to cover maintenance and administration of recreational lands open to the public, and still be covered under the Nebraska Recreational Liability Act. 

          I plan to be at the state house representing NOHVA in Lincoln stating our case for legislation to address our liability concerns.  I have asked the Motorcycle Industry Council (MIC) to help us with a lobbyist.  MIC represents the interests of Honda, Kawasaki, Suzuki, Yamaha, Polaris and other big name manufacturers.   I have also been in contact with the Nebraska Recreation and Parks Association and with the Nebraska Game and Parks Commission (NGPC).  NGPC is very concerned about the changes as it could directly effect them.   Another group I have been in contact is the Nebraska League of Municipalities.  We plan to ask for help from the AMA, the Motorcycle Industry Council and the newly formed Nebraska Motorcycle Dealers Association to make sure that our sport is represented properly when the Nebraska Recreational Liability Act is revised. 

What you can do to help is contact your state legislator and ask for their help.  They need to be told about your concern that the Supreme Court ruling may close the public places in Nebraska that your ride.  They need to be told that the ruling may cause premiums for the areas you ride to increase dramatically and it may not be economically feasible for the areas to remain open.  Tell them that government land owners need protections from liability.  Also mention that our sport, off-highway recreation including ATVs and off-road motorcycles need to be exclusively mentioned in the revised act in the same manner as equestrian sports (horse back riding). 

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This page was updated on Monday, February 19, 2007